In our routine life, AI entities have found a prominent place in the form of virtual assistants. Siri, Alexa, Google Assistant, and Bixby are prominent examples of the presence of AI in our daily lives. Moreover, smart electronic appliances, such as Air-Conditioners, Refrigerators, Chimneys, and Television have also imbibed AI to offer preference-based operation for the convenience of the end-user. One of the most ground-breaking applications of AI is found in autonomous cars, which have recently been garnering a lot of media attention. Therefore, knowingly or unknowingly, AI has become an essential part of our lives and it is quite evident that its presence and our dependence on the same will increase in the years to come.

The capability of the AI entity to learn and evolve is one of its most fascinating features. However, this feature is also the root cause of the unpredictability associated with the operation of the AI entity. For instance, there were reports some time ago that two robots in a lab started conversing among themselves in a language unknown to their creator and this episode apparently led to the closure of that project altogether.

Such incidents indicate that the developer arguably cannot constrict the so-called intellectual capability of AI entities, and it is this unpredictability that casts a shadow of doubt on the legal recognition of the AI entities. For example, this unpredictability is currently causing trouble in determining the liability arising out of such autonomous operation of the AI entities. The accidents of the autonomous cars have particularly brought this question up in the last few years. For example, who shall be held liable for any mishappening caused at the time of autonomous operation of the vehicle, the developer of the autonomous vehicle or the AI vehicle itself?

Moreover, the learning capabilities of the AI also equip any AI entity to create Intellectual Property (IP). In order to offer some relatability, Sophia, a social humanoid robot, is capable of intelligently responding to human conversation. In fact, in 2017, the United Nations and Development Programme (UNDP) appointed Sophia as the first-ever Innovation Champion. Among other qualities, in 2019, Sophia learned to sketch. Generally, the IP rights, such as the copyrights of a sketch lie with the creator. However, whether a non-human such as Sophia can be conferred with the IP rights is a complex legal question.

As a result, the inventorship of AI entities is still one of the most discussed topics in the patent landscape. The main concern with naming the AI-based machine as the inventor is fixing of the liability in case of any damages caused by the inventions developed by the AI-based machine. In case of any malfunction of the invention, who would be held responsible? If the Applicant (human) is held responsible, they can always argue that the AI-based machines have the capability to learn on their own and therefore, the Applicant has no control over the learning and subsequent action of the AI-based machine/inventor whatsoever. On the other hand, if the AI-based machine/inventor is held responsible, existing legal framework do not provide for penalising a machine. Therefore, in that case, the entire legal framework is to be overhauled to accommodate this.

This is to be clearly understood that if the AI-based machines are to be named as the inventors, we are basically giving them the recognition of a natural person. Whether the AI-based machine would then be conferred with the legal position of the natural person in other laws is uncertain. Therefore, the naming of the AI-based machine as the inventor is not restricted to just the Patent Laws. This would demand the overhaul of the entire legal structure across the globe.

Recently, the ownership of the IP rights of the content generated by an AI entity, Device for the Autonomous Bootstrapping of Unified Sentience (DABUS), was discussed in the United States Patent and Trademark Office (USPTO), the European Patent Office (EPO), the Australian Patent Office, and the United Kingdom Intellectual Property Office (UKIPO). DABUS was named as the inventor in a couple of patent applications. While all these offices rejected DABUS as the inventor, the discussion on the feasibility of AI entities as the inventor of a patent application has gained public attention.

Another hurdle in the determination of liability and the IP rights of the AI entities is the blurred line between the developer’s contribution and the AI entity’s contribution to the creation. For example, who should be conferred with the ownership of the sketches made by Sophia, Sophia or the creator of Sophia? Once the ownership of such actions is decided, the concerns relating to the associated rights and liabilities arising therefrom also need to be settled.

It is clear that any AI invention without any human contribution cannot be held patentable under the existing patent laws because the AI entities cannot be considered as inventor or a co-inventor of an invention. A totally new kind of protections system may still be considered to protect inventions independently created AI. At the same time, AI created inventions should not be held non-patentable only because of the reason that an entity helped a human inventor to come up with an invention.

Considering all these factors, the accommodation of the AI in the existing legal framework appears to be a daunting task. First, a clear line must be established between the contribution of the developer and the AI system in order to determine the ownership of the created content. This would first demand a technical analysis of the contribution made by AI. Once that ownership is settled, the ownership of the IP rights can also be settled, which may further be used to fix associated liabilities. Considering that the none of the laws accommodate the AI-based machine in their gambit, unless the AI-based machine is provided with the same legal position as that of the natural person, it is not practically possible for the machine to exercise the rights associated with the inventorship. Therefore, unless other laws are also amended to accommodate the AI-based machine as a legal person, naming the AI-based machine as the inventor does not appear to be currently possible. However, owing to the ever-increasing involvement of AI entities in our life, it would not be unreasonable to expect more discussions on accommodating AI entities in the legal framework of the future.